Yes, Minister, But…

According to the Globe and Mail, the federal Justice minister, Rob Nicholson, was recently asked about the propriety of a hypothetical (actually, rumoured) appointment of a cabinet minister to the bench. The Globe reports that

“[h]e said he did not believe that certain individuals should be ruled out as judges. ‘I’ve never gone out of my way to say that certain groups of individuals – people who have served, for instance, in political office – that they should be eliminated or sit out or anything else.'”

As a general principle, I think that’s right. There are fine lawyers serving in political office, and it would be too bad if we deprived ourselves of their services on the bench. During my clerkship at the Federal Court, I have had the privilege of working on some cases for Justice Yvon Pinard, who had been a cabinet minister and the government’s Leader in the House of Commons during Pierre Trudeau’s last cabinet, immediately prior to his appointment to the court (at the ripe old age of 36). I believe he is a fine judge. Indeed I’ve been told, though I haven’t verified this, that he is the judge of the Federal Court whose decisions are least often reversed by the Federal Court of Appeal. (This is surely not the only, maybe not even the best, benchmark by which to measure a judge’s performance, but it is worth something.) And there are many other examples of former politicians who went on to have fine, or even distinguished, judicial careers, in Canada and elsewhere. Perhaps the most famous of them was Earl Warren, governor of California, vice-presidential candidate, and later  an iconic Chief Justice of the United States.

The counter-argument, the basis for claims about the impropriety of appointing a politician to the bench, implies that such a judge would be partisan, biased, or insufficiently independent. But many lawyers are political partisans even without serving in political office. If we assume that they are capable of relinquishing partisanship upon appointment to the bench, I think we should also afford the same presumptive trust to former active politicians. Lawyers work for firms that appear before them when they become judges; or they work in government positions in which they consistently take the same side of an issue (as prosecutors for example), but we expect them to be able to serve as impartial judges. Again, there is no reason to treat politicians any differently.

That said, there is a qualification which, although valid for any lawyer aspiring to the bench, might be worth special emphasis in the case of active politicians. A lawyer’s conduct, especially his or her conduct in his or her chosen profession, can obviously be scrutinized for signs that the lawyer may not be able to live up to the standard of conduct expected of a judge. As the Canadian Judicial Council explains,

    • Judges should, at all times, exhibit and promote high standards of conduct so as to reinforce public confidence. Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.
    • Judges should perform their duties with diligence while treating everyone before the court with courtesy and equality, being careful to avoid stereotyping or discrimination. Judges should avoid comments, expressions, gestures or behaviour which may be interpreted as showing insensitivity or disrespect.
    • In making their decisions, judges must be and must appear to be impartial at all times. Judges must be mindful of how inappropriate comments, improper remarks or unjustified reprimands can undermine the appearance of impartiality and actively work to avoid them.

Prior to their appointment to the bench, lawyers are not held to the same standard, and some deviations from it should not be disqualifying from a judicial appointment. But a lawyer who has a history of treating opponents as enemies, of going beyond the normal bounds of partisanship, of refusing to acknowledge contrary viewpoints, or of being hateful or contemptuous is, in my view, not qualified to serve as a judge. And, arguably, politicians are especially at risk of committing these deadly sins. A politician who claims that the opponents of his policy “stand … with child pornographers” probably should not become a judge. Yes, Minister, it is your colleague Vic Toews I am talking about.

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